IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Tremblay,

 

2019 BCSC 388

Date: 20190305

Docket: 84485

Registry: Nanaimo

Regina

v.

Matthew Dean Tremblay

Before: The Honourable Madam Justice DeWitt-Van Oosten

Reasons for Judgment –– Post-Offence Conduct
(Voir dire #2)

Counsel for The Crown:

Catherine D. Hagen
James K. Kulla

Counsel for the Accused:

Jordan D.A. Watt

Place and Dates of Trial:

Nanaimo, B.C.
February 4–8, 11–14

March 4–8, 2019

Place and Date of Judgment:

Nanaimo, B.C.

March 5, 2019


 

[1]            These Reasons for Judgment were delivered as oral reasons.  They have since been edited for distribution and publication.

[2]            THE COURT:  Matthew Dean Tremblay (the accused), is charged with two offences under the Criminal Code, R.S.C. 1985, c. C-46: aggravated assault (s. 268(2)) and assault with a weapon (s. 267(a)).

[3]            The offences occurred in Nanaimo on March 31, 2018.  Mr. Tremblay is alleged to have stabbed Brendan Lapoleon four times: twice in the abdomen, once in the right forearm and once in the left groin.  Mr. Lapoleon lost a significant amount of blood and required emergency surgery to survive.

[4]            Mr. Lapoleon was not known to the accused.  Identity is not in issue.  The accused admits he was the person who stabbed Mr. Lapoleon. Mr. Tremblay also admits that the injuries sustained by Mr. Lapoleon "wounded, maimed, disfigured or endangered" his life within the meaning of the Code.

[5]            However, Mr. Tremblay says he acted in self-defence when he committed the stabbing and, as such, the force he used against Mr. Lapoleon was justified.  The Crown does not dispute that there is an "air of reality" to the defence of self-defence.

[6]            Mr. Tremblay is being tried without a jury.  Thus far, I have heard approximately nine days of evidence.  A considerable portion of the evidence (although not all of it), was called within the context of a blended voir dire involving two issues: (1) the voluntariness of an in-custody statement provided by Mr. Tremblay to police following his arrest; and (2) an application to exclude that statement, as well as derivative evidence (the location of the knife used by Mr. Tremblay), on grounds it was obtained in violation of s. 10(b) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter").

[7]            On completion of the voir dire, Mr. Tremblay conceded voluntariness of the statement, and the Charter-based application for exclusion of the statement and derivative evidence was withdrawn.

[8]            Before the voir dire, counsel agreed that if voluntariness was proved, and the defence did not succeed on its s. 10(b) challenge, the evidence from the blended voir dire would roll over into the trial proper and not have to be recalled.  However, this agreement extended only to evidence that is properly admitted under the rules of evidence that govern criminal trials.  Hearsay or documentary evidence relevant to issues on the voir dire, but presumptively inadmissible at a trial, would not roll over.

[9]            To this end, counsel have agreed to the following:

·        all "numbered" exhibits on the voir dire will form part of the evidence on the trial proper;

·        "lettered" Exhibits L, M, N, O and E on the voir dire will form part of the evidence on the trial proper;

·        "lettered" Exhibits F, G, H, I, J and K on the voir dire are not admissible on the trial proper;

·        the testimony of jail guards Lynnette Weisbeck, Cale Burns and Trudy Olsen is not admissible on the trial proper;

·        except for any conversations with the accused, or utterances made by him, the testimony of Cpl. Zayonc, Cst. Laforest, Cst. Penton, Kyla Mitrovic, and Cst. Liggett and Cst. Bouvier will form part of the evidence on the trial proper;

·        Cst. Sammoun's observations of Mr. Tremblay's state of sobriety during his interaction with him; his responsiveness to questions asked and demands made of him following his arrest; the nature of Mr. Tremblay's injury; and the fact that no drugs were administered to Mr. Tremblay while at hospital receiving treatment for a cut finger, will form part of the evidence on the trial proper; and,

·        the testimony of Cst. Reynolds and Cpl. Eggen will form part of the evidence on the trial proper, including the statements provided to them by the accused.

[10]        Counsel are not in agreement on the admissibility of two "lettered" exhibits on the voir dire, namely: Exhibit A [book of photographs taken at 610 Sandy Court, where the accused was arrested]; and Exhibit B [book of photographs taken during a search of 320 Harewood Road, the accused's residence].

[11]        In addition, Mr. Tremblay argues that from the evidence that will be rolled over, as well as evidence already forming part of the record on the trial proper, the following pieces of evidence should be exempted and/or excluded:

·        evidence that Mr. Tremblay left the scene and returned home immediately following the stabbing;

·        words alleged to have been said by him while leaving, including: "I hope you fuckin' die"; "I hope u like getting stabbed"; and "You're going to die tonight, bitch";

·        evidence that Mr. Tremblay dropped a knife later recovered by police down a storm drain after exiting the parking lot at which the stabbing occurred;

·        evidence that after returning to his residence, he wrote the word "help" in what appears to be blood on his front door, as well as other markings on one of the walls;

·        evidence that he removed the shirt he was wearing at the time of the stabbing and left it in his residence before departing;

·        evidence that he did not seek help or medical attention for a cut to his finger;

·        a note found in his residence that said, "Mom give this to michaelia I Fucked Up I never deserved her";

·        evidence that he was found in a camper parked in the driveway at 610 Sandy Court, away from his residence, after police were searching for him with the assistance of police dogs; and,

·        a portion of his voluntary Chartered and Warned statement in which he initially lied about the knife used in the stabbing, saying it belonged to the complainant and that Mr. Tremblay took it away from him during the altercation.

[12]        It is the position of the defence that Exhibits A and B on the voir dire, as well as the evidence cited above, constitutes evidence of after-the-fact (or post-offence) conduct that is not relevant to a live issue at trial, of no probative value and so prejudicial in its effect, that it must be excluded from trial.

[13]        The prejudicial effect is predominantly said to arise out of the fact that if this evidence is admitted, it would effectively force Mr. Tremblay to testify in support of his defence, contrary to his constitutionally protected right to remain silent.

[14]        I heard arguments on the application for exclusion yesterday.  This matter is in the midst of trial and the parties require an expedited decision.  Mr. Tremblay, in particular, needs to know whether the Court considers the impugned evidence admissible, so he can make an informed decision on whether to testify.

[15]        In light of the urgency, I will keep these Reasons relatively brief.  I will not reference all of the authorities put before me, canvass the relevant legal principles in depth, or detail the positions of the parties.  I have reviewed the cases referenced by counsel for Mr. Tremblay and the Crown, and considered their submissions within the context of the evidence I have heard so far.

[16]        In my view, Exhibits A and B on the voir dire are admissible, as well as the other evidence sought to be excluded by Mr. Tremblay.  I am satisfied that the evidence of Mr. Tremblay's after-the-fact conduct is relevant to a live issue at trial, and, I am not persuaded that its prejudicial effect outweighs its probative value.

[17]        As recently noted by Justice Martin (dissenting in part) in R. v. Calnen, 2019 SCC 6, "evidence of after-the-fact conduct is admissible if it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects": at para. 107.

[18]        In assessing relevance, the Court must ask whether there is a "logical relationship between the proposed evidence and the fact that it is tendered to establish": Calnen at para. 108.  "The threshold is not high and evidence is relevant if it has "some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence"": Calnen at para. 108, citing R. v. White, 2011 SCC 13 at para. 36.

[19]        This is a "highly context and fact specific" inquiry: Calnen at paras. 106, 108 and 139.

[20]        In this case, there is evidence on the trial proper from which the Court will be asked to conclude that prior to the altercation between Mr. Tremblay and Mr. Lapoleon, the complainant was upset about the fact that his girlfriend was with Mr. Tremblay, was intent on beating him up and physically approached Mr. Tremblay for that purpose.

[21]        Evidence from the voir dire that will roll over into the trial proper by consent, includes surveillance video footage that captures the physical altercation between Mr. Tremblay and Mr. Lapoleon.  Among other things, the video shows Mr. Lapoleon climbing over a 6-foot chain link fence and moving directly to Mr. Tremblay.  The accused is seen to move back.  Mr. Tremblay continues the approach and appears to raise an arm toward Mr. Tremblay.  There is physical contact between the two and the stabbing occurs.

[22]        In his statement to police, which will also move into the trial proper, Mr. Tremblay said he acted in self-defence.  He said he "didn't just walk up and stab the kid out of nowhere".  Among other things, Mr. Tremblay told police that Mr. Lapoleon was "agitated that [he] was hanging out with [Mr. Lapoleon's girlfriend].  He "came at [Mr. Tremblay]".  The accused pulled out a knife out, thinking that if he displayed it, Mr. Lapoleon would not come after him.  However, he "kept coming" and Mr. Tremblay swung his arm out with the knife.  He said he does not remember how he stabbed Mr. Lapoleon.  He just remembers "[Mr. Lapoleon] coming at [him]".  He "feared" and "just reacted like it's all that part is a blur".

[23]        Clearly, based on these pieces of evidence alone, the defence of self-defence is a live issue at trial.

[24]        The Crown bears the burden of disproving the defence.  To meet this burden, it must prove beyond a reasonable doubt that one of the three constituent elements of the defence does not apply.  These elements are set out in s. 34(1) of the Code.  Under that provision, a person is not guilty of an offence if:

(a)        they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b)        the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c)        the act committed is reasonable in the circumstances.

[25]        All three of the s. 34(1) criteria must be present for the defence to be available: R. v. Randhawa, 2019 BCCA 15 at para. 34. [Internal references omitted.]

[26]        The Crown concedes, based on the evidence thus far, that when he stabbed Mr. Lapoleon, the accused believed, on reasonable grounds, that force was being used against him, or, at the very least, there was a threat of force.

[27]        However, the second and third of the s. 34(1) criteria are contested.  On completion of the evidence, the Crown intends to argue that Mr. Tremblay did not stab Mr. Lapoleon to defend himself; four stab wounds was not a reasonable response to the force applied by Mr. Lapoleon, or threat of force presented; and, Mr. Tremblay was not truthful when he gave his version of events to police.  The only injury observed on Mr. Tremblay following the altercation was a cut to a finger on his right hand.

[28]        In R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (O.N.C.A.), the Court of Appeal for Ontario held that the:

… conduct of an accused person after the event in issue may … depending on the circumstances of the case, have some evidentiary value in rebutting defences put forward by an accused which are based on an alleged absence of the required culpable mental state … the after-the-fact conduct is potentially relevant because it is circumstantial evidence with respect to the accused's state of mind.  In other words the conduct is not consistent with the actions of a person who had the state of mind now alleged at trial.  If the accused's explanation of the after-the-fact conduct is rejected by the jury, it is evidence from which an inference may be drawn that the accused person did have the requisite cognitive mental state, or level of mental awareness, to commit the crime alleged.

At para. 31. [Emphasis added. Internal references omitted.]

[29]        In R. v. Williams, 2014 BCCA 183, Peavoy was said to "correctly" state the law on this issue: at para. 6.

[30]        I am of the view that the after-the-fact conduct challenged by the defence in this case, has "some evidentiary value" in rebutting the second element of the defence of self-defence.  It has "some tendency, as a matter of logic, common sense and human experience (as the expression goes) to help resolve a live issue in the case": White at para. 140.

[31]        Or, using the language of Justice Martin in Calnen, the evidence has "some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence".

[32]        The Crown's after-the-fact conduct evidence includes Mr. Tremblay leaving the scene immediately after the stabbing; while still within hearing distance, vocalizing a desire that Mr. Lapoleon "die"; dumping the knife used in the stabbing in a nearby storm drain; changing the shirt he wore; leaving a note in his suite that he "fucked up"; hiding in a camper away from his residence; and initially lying to police about the origin of the knife, saying it came from the complainant.  This evidence, particularly in its cumulative effect, makes the Crown's proposition that the accused did not stab Mr. Lapoleon for the subjective purpose of defending himself, more likely than that proposition would be without the evidence.

[33]        The after-the-fact conduct carries the potential capacity to inform inferences drawn from, and findings of fact made about acts captured by the video footage; it is relevant to assessing the credibility and reliability of the non-culpable version of events put forward by Mr. Tremblay in his statement to police, including explanations he provided about what he did after-the-fact; and, should he elect to testify, it will be relevant to assessing the credibility and reliability of his evidence at trial in asserting a non-culpable state of mind.

[34]        An inference could (not must) be drawn from these behaviours that at the time he stabbed Mr. Lapoleon, Mr. Tremblay's intention was something other than protecting himself and after the stabbing, he tried to conceal evidence, avoid being found and lied about the circumstances surrounding the incident involving Mr. Lapoleon in recognition of his more culpable state of mind.

[35]        In Calnen, Justice Martin noted that the jurisprudence on after-the-fact conduct "clearly establishes that [it] may be relevant to the issue of intent": at para. 138.  See also: Williams at para. 6 and R. v. Angelis, 2013 ONCA 70 at para. 53, wherein it was held that: "Where self-defence is raised as a defence, an accused's post-offence conduct is circumstantial evidence from which a jury can infer that the accused committed a culpable act, and thus did not act in self-defence".

[36]        In R. v. Jaw, 2009 SCC 42, the Supreme Court confirmed that after-the-fact conduct evidence can also be used to "impugned the accused's person's credibility": at para. 39.

[37]        I fully appreciate that other inferences are also possible, perhaps equally plausible, from this evidence.  However, the law is clear that, standing alone, the fact that evidence of after-the-fact conduct may give rise to "a range of potential inferences", does not render the evidence inadmissible: Calnen at paras. 112, 124.  The "existence of alternative explanations for the accused's conduct does not mean that certain evidence is no longer relevant": Calnen at para. 124.

[38]        I note that this evidence also forms an integral part of the narrative of events in the hours following the alleged offence, providing a factual context for investigative steps taken by police; the location at which they found and arrested Mr. Tremblay; when and where they made the observations of the accused relayed in their testimony; and, questions put to him by police, and issues canvassed, in the Chartered and Warned statement.

[39]        Finally, the evidence is also relevant to assessing the credibility and reliability of descriptions of the alleged offence and the surrounding circumstances provided by other witnesses.  This includes observations made of the accused while leaving the scene; his direction of travel; and, descriptions of his demeanour and level of sobriety.  The credibility and reliability of some of these witnesses has been significantly challenged on the trial proper.

[40]        In Calnen, Justice Martin held that:

142      … if a trial judge finds that a piece of evidence is not relevant to a live issue (i.e., if it is incapable of making the proposition for which it is advanced more likely than it would be in the absence of the evidence), then it is her responsibility to either exclude the evidence, or, if it is already admissible for another purpose, provide a limiting or no probative value instruction.  If, however, the evidence is found to be relevant (i.e. it has some tendency to make the proposition more likely), then it will be up to the trier of fact to determine how much weight it should be given.

[Emphasis added.]

[41]        In the circumstances of this case, I am satisfied that the after-the-fact conduct sought to be excluded by the defence is relevant to a live issue at trial, namely, Mr. Tremblay's state of mind at the time he stabbed Mr. Lapoleon, and whether the defence of self-defence is available to him.  I have also found it admissible for other purposes, including the assessment of credibility.

[42]        In light of these conclusions, it is appropriate to admit the evidence on the trial proper, recognizing that the amount of weight assigned to it, or the inferences drawn after a consideration of the trial evidence, as a whole, is yet to be determined.

[43]        The ruling on admissibility in no way predetermines whether the inferences sought by the Crown in rebutting the defence of self-defence will, in fact, be drawn.

[44]        In R. v. Verma, 2016 BCCA 220, the Court of Appeal noted that "post-offence conduct evidence is not a special category of evidence requiring special rules in respect of admissibility or limited instructions.  It is an area, however, in which a judge must take care to ensure that a jury does not misuse the evidence, or treat it as more persuasive than is warranted": at para. 62.

[45]        After-the-fact conduct can pose "unique reasoning risks" and, when it forms part of the Crown's case, the trier of fact is obliged to consider alternative explanations for the behaviour and "avoid a mistaken leap from [the] evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear or a false accusation, or some other innocent explanation": Calnen at paras. 116–117. [Internal references omitted.]

[46]        In my view, within the context of this judge alone trial, the Court's obligation to consider alternative explanations for Mr. Tremblay's post-offence behaviour sufficiently mitigates the risks associated with it admission.

[47]        I find that this is so even if Mr. Tremblay determines, based on the ruling in favour of admission, that he should testify.  This is an election for him to make in consultation with his legal counsel.

[48]        Mr. Tremblay is not obliged to give evidence but, if he does, the Court retains its responsibility to ensure that the after-the-fact conduct is not used for an improper purpose, as well as consider alternative explanations before drawing inferences from the conduct specific to Mr. Tremblay's state of mind at the time of the stabbing.  To convict on the basis of inferences drawn from this circumstantial evidence, I would have to be satisfied beyond a reasonable doubt that these were the only rational inferences to draw: R. v. Griffin, 2009 SCC 28; R. v. Villaroman, 2016 SCC 33.

[49]        Finally, if Mr. Tremblay testifies, he will receive the full benefit of the analysis mandated by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742.

[50]        For the reasons provided, I admit Exhibits A and B from the voir dire on the trial proper; the whole of the evidence agreed by consent to roll over; and the after-the-fact conduct challenged by the defence.

"DeWitt-Van Oosten J."